[2024] UGCA 324

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT GULU CRIMINAL APPEAL NO. 626 OF 2OI4

## DRALUKU ZAKARY:::::::::::]::::::::::::::::::::::::::::::::::::: APPELLANT

#### Versus

UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT (Appeal from the decision of the High Court of Uganda at Lira before the Honorable Lady Justice Elizabeth Nahamya delivered on the 22nd day of August 2012 in Session case No. ADJ-C0-0414-201 1)

## CORAM: HON. JUSTICE FREDRICK EGONDA NTENDE' JA

## HON. JUSTICE MARGARET TIBULYA, JA

## HON, JUSTICE MOSES KAWUMI KAZIBWE, JA

### JUDGMENT OF THE COURT

L The accused Draluku Zackary was indicted with Aggravated Defilement contrary to section 129 (3) and (a) (a) (c) ofthe Penal Code Act.

#### Backgrou nd.

2. The facts of the case as accepted by the lower court were that on or about the 21't day of November 201I while the then 1l-year-old victim, SS, was at home with the accused who was her stepfather, he took her to the bush and had sexual intercourse with her. He warned her not to reveal his action to anybody. The victim, however, complained to her mother (Kareo Rebecca) that she had both back and stomach pain. She also informed her that the appellant had had sexual intercourse with her on several occasions. The victim was medically examined and found to have sustained a raptured hymen. She

had also been infected with a sexually transmitted disease. The Appellant was arrested and charged with aggravated defilement.

- 3. The appellant was tried, convicted and sentenced to 30 years' imprisonment, hence this appeal. - 4. The appeal is premised on one ground, that the learned trial Judge erred in law and fact when she imposed a manifestly harsh excessive sentence of30 years imprisonment and failed to deduct the period which the appellant had spent on remand, which led to a serious miscarriage of justice.

#### Representation.

5. The appellant was represented by Mr. Douglas Okot Odiek, while the respondent was represented by M/s Happiness Ainebyoona (Chief State Attorney) together with Ivan Nandhuki Senior State Attomey.

#### Consideration of the Appeal.

6. We are alive to the principles that an appropriate sentence is a matter for the discretion of the sentencing judge, and that each case presents its own facts upon which a judge exercises his discretion. Further that the appellate court can only interfere with the sentence ofthe trial court ifthere is an error of law, that is, if the trial court acted contrary to the law or upon a wrong principle or overlooked a material factor. The appellate Court will also interfere if the said sentence is harsh and/or manifestly excessive. (See; Kyalimpa Edward versus Uganda Criminal Appeal No. l0 of 1995; Jackson Zita vs Uganda, Criminal Appeal No. I 9 of I 995 (SC); Nalongo Naziwa Josephine vs Uganda, Criminal Appeal No, 088 of 2009 (COA), and Kiwalabye vs Uganda, Supreme Court Criminal Appeal No. 143 of 2001.

- 7. Bearing in mind the above principles, we shall proceed to re-evaluate the sentencing proceedings and the reasons given for the sentence which was imposed to determine whether there is any reason to interfere with the same. - 8. It was argued for the Appellant that the sentence of 30 years imprisonment for aggravated defilement was excessive and amounted to a miscarriage of Justice. - 9. Counsel maintained that the sentencing judge did not give adequate weight to the mitigating factors laid down under Guideline 21 of the Sentencing Guidelines which she ought to have considered. These include; - i. the fact that the offender is a first offender with no previous conviction or relevant or recent conviction. - ii. remorsefulness of the offender, - iii. whether the offender pleaded guilty, - iv. advanced or useful age of the offender, and - v. familyresponsibilities. - I 0. The sentencing record, however, contradicts counsel's submissions. - 1l. We note that the Trial Judge in fact considered the fact that the Appellant was a first offender, and that he was of mid age thirty-nine (39) years. She also considered the fact that the Appellant had been on remand for nine (9) months. - l2. It is only that in the judge's view, the aggravating factors outweighed the mitigating ones. As far as the aggravating factors are concemed, the sentencing judge considered that Aggravated Defilement is a capital offence for which the appellant was liable to suffer death. The appellant prayed that he be spared the death penalty, and his wish was granted. - l3. She also considered the age difference between the victim (13 years) and the appellant (almost 40 years), and the fact that the appellant was a guardian to the victim and yet did not protect her.

q"

- 14. Also considered was the fact that the victim was the appellants wife's child, and that the appellant paid his wife, who had gone to eke out a living for the family while the appellant remained at home, with hatred instead of love. - l5. Pointing out that the law on aggravated defilement was passed to protect children below fourteen ( 14) years, the judge determined that she had to give the law and the spirit behind it its expected effect. - 16. The judge also considered that the number of men like the appellant who prey on children under their care was increasing in society, and that a message needed to reach them to stop the habit and dissuade those who were anticipating committing such offences. - l7. She finally considered that in the appellant's case, the deterrence principles rather than reformatory principles of sentencing were more appropriate. - l8. Based on the sentencing record therefore, the assertion that the sentencing judge did not give adequate weight to the mitigating factors laid down in sentencing guideline 21 i.e., (the fact ofthat the appellant was a first offender, his remorsefulness, his age and family responsibilities) is incorrect. All these mitigating factors were considered but not found to have been compelling. - 19. The complaint that the leamed judge did not deduct the 9 months which the appellant had been on remand is without basis. The appellant was sentenced on 22d August 2012 before the Rwabugande Mosesr principles which require that the remand period should have been arithmetically deducted from the sentence which the court will have set were laid down. It is therefore sufficient that the judge indicated that she had considered the appellant's remand period. The Trial judge acted within her prerogative.

¹Rwabugande Moses Vs Uganda; Supreme Court Criminal Appeal 25/2014,

- 20. We, however, accept the submission that the leamed judge did not address her mind to the principle of uniformity of sentences. The record does not bear any evidence that she did. - 2l. One of the principles of sentencing is that sentences must be consistent2. In Baruku Asuman vs. Uganda, Court of Appeal Criminal Appeal No' 387 oI20l4, this court, underscored the importance of consistency of sentences. - 22. We have looked at the range of sentences for similar offences in order to determine whether the sentence of 30 years imprisonment for aggravated defilement was harsh and excessive as alleged by counsel for the appellant. - 23.[n Candia Akim vs Uganda, Court of Appeal Criminal Appeal No. Ol8l of 20Ag, this Court upheld a sentence of l7 years' imprisonment for the offence ofaggravated defilement. The appellant was the stepfather ofthe l3-year-old victim. - 24. In Rugarwana Fred vs Uganda, SCCA No. 39 of 1995 the Supreme Court upheld the appellant's sentence of l5 years for aggravated defilement of a 5 year-old girl. - 25. We note that the sentencing range in the above similar cases is between 1 5 and 17 years. - 26. Based on the foregoing, we find the sentence of 30 years imposed on the appellant in this case harsh and excessive. We therefore shall interfere with the same. - 27. Having taken into account both the aggravating and mitigating factors set out above and the range ofsentences for the offence of aggravated defilement in

²see Guideline 6, para c ofthe Constitution (sentencing Guidelines for courts ofjudicature) (Practice) Directions 2013.

the above cited authorities, we find a sentence of 18 years imprisonment appropriate in the circumstances of this case, However, since the appellant had spent a period of 9 months remand prior to his conviction, we deduct that period from the 18 years and sentence the appellant to 16 years and 3 **months'** imprisonment from the date of his conviction, that is, $22^{nd}$ August 2012.

28. In conclusion, we allow the appeal against sentence in the above stated terms.

We so order.

Signed, dated and delivered at Gulu this 2.1. day of ...................................

**Fredrick Egonda-Ntende Justice of Appeal**

**Margaret Tibulya Justice of Appeal**

**Moses Kawumi Kazibwe Justice of Appeal**